concurring in the result.
[¶ 24] I agree with much of what Justice Crothers has written for the majority. I was a member of the Court and signed the opinion in Reiling v. Bhattacharyya, 276 N.W.2d 237, 239 (1979). As the majority also notes, I did lament, in dissent, the failure to follow Bhattacharyya in subsequent cases. See, e.g., State v. Davenport, 536 N.W.2d 686, 692 (N.D.1995) (VandeWalle, C.J., dissenting); Smith v. Baumgartner, 2003 ND 120, ¶ 26, 665 N.W.2d 12 (VandeWalle, C.J., dissenting). One might therefore assume that I would gleefully sign on to the majority opinion. I do not. Rather, I concur only in the result for the following reasons.
[¶ 25] Bhattacharyya was a noble undertaking that would, once and for all, do away with the analysis of whether a statute was procedural, and therefore to be applied retroactively, or substantive, and therefore to be applied only prospectively. It would establish instead a bright line for those statutes that were to be applied retroactively, within the parameters of the Constitution, and those that were to be applied prospectively only. The “bright line” was to be that after our ruling in Bhattacharyya, the Legislature would henceforth tell us, in no uncertain terms, those statutes which were to be applied retroactively and those statutes which were to be applied prospectively only. The “bright line” never developed. For the most part Bhattacharyya was met with silence from the Legislature. Although the majority justifiably relies on N.D.C.C. § 1-02-10 to hold that no statute is to be applied retroactively unless there is an express declaration of the Legislature, that did not hold true before Bhattacharyya, and it has not held true after that decision. Indeed, the Legislature may intend every procedural statute to apply retroactively since there is no constitutional infirmity to such an application.
[¶ 26] More significant to me, however, is that the blind application of the “bright line” rule established in Bhattacharyya, and now resurrected by the majority, will produce artificial and unintended results. That is the very reason the Court strayed from its holding in Bhattacharyya in such decisions as State v. Cummings, 386 N.W.2d 468 (N.D.1986) and State v. Shafer-Imhoff, 2001 ND 146, 632 N.W.2d 825. Although it might be argued that it is the Legislature, not this Court, which should be concerned about the artificial or unintended effects of legislation, we have consistently held that if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, we will resort to intrinsic aids to determine the actual intent of the Legislature. E.g., Shiek v. N.D. Workers Comp. Bureau, 2001 ND 166, 634 N.W.2d 493. It may be a more laborious process for this Court to construe and apply statutes without the “bright line” rule of Bhattacharyya, but I have come to believe that analyzing whether a statute is substantive or procedural is the preferable method of determining legislative intent as to whether a statute should be applied retroactively or prospectively only.
[¶ 27] Nevertheless, under Fortier v. Traynor, 330 N.W.2d 513 (N.D.1983), the applicable law is the law in effect when the cause of action for malpractice arises. The removal of the exception for actions for alleged lack of informed consent in N.D.C.C. § 28-01-46 is substantive, not procedural, and I therefore concur in the result reached by the majority opinion.
[¶ 28] Gerald W. VandeWalle, C.J.